Victor Espinoza v. State

IN THE
TENTH COURT OF APPEALS
No. 10-12-00359-CR
VICTOR ESPINOZA,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2011-2277-C1
MEMORANDUM OPINION
Victor Espinoza was indicted on one count of aggravated sexual assault of a
child and one count of indecency with a child. The jury convicted Espinoza on both
counts and assessed his punishment at confinement for life and a $10,000 fine for the
aggravated sexual assault of a child conviction and twenty years confinement and a
$10,000 fine for the indecency with a child conviction. We affirm.
Background Facts
M.S. is the step-granddaughter of Espinoza. She testified at trial that one night
while at her grandmother’s house, she rode with Espinoza to the store. M.S. stated that
on the way back from the store Espinoza stopped his truck and put her on his lap.
Espinoza kissed M.S. and told her that was a “regular kiss.” Espinoza then kissed M.S.
again and had his tongue in her mouth, and he told her that was a “French kiss.” M.S.
testified that Espinoza rubbed her back and bottom on the outside of her clothes, and
then he moved his hand to the “front” and went inside of her shorts and rubbed the
outside of her underwear. M.S. testified that Espinoza then put his hand inside of her
underwear and tried “to push at the hole where I pee.” Afterwards, Espinoza gave her
two dollars and told her not to tell anyone. M.S. did not tell anyone about the offense
for several years.
Ineffective Assistance of Counsel
In his sole issue on appeal, Espinoza argues that he received ineffective
assistance of counsel. To prevail on a claim of ineffective assistance of counsel, an
appellant must meet the two-pronged test established by the U.S. Supreme Court in
Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) and
adopted by Texas two years later in Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim.
App. 1986). Appellant must show that (1) counsel's representation fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 689, 104 S. Ct. 2052.
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Unless appellant can prove both prongs, an appellate court must not find
counsel's representation to be ineffective. Strickland, 466 U.S. at 687, 104 S. Ct. 2052. In
order to satisfy the first prong, appellant must prove by a preponderance of the
evidence that trial counsel's performance fell below an objective standard of
reasonableness under the prevailing professional norms. To prove prejudice, appellant
must show that there is a reasonable probability, or a probability sufficient to
undermine confidence in the outcome, that the result of the proceeding would have
been different. Id.
An appellate court must make a strong presumption that counsel's performance
fell within the wide range of reasonably professional assistance. Lopez v. State, 343
S.W.3d 137, 142 (Tex. Crim. App. 2011). In order for an appellate court to find that
counsel was ineffective, counsel's deficiency must be affirmatively demonstrated in the
trial record; the court must not engage in retrospective speculation. Id. "It is not
sufficient that appellant show, with the benefit of hindsight, that his counsel's actions or
omissions during trial were merely of questionable competence." Lopez v. State, 343
S.W.2d at 142-3. When such direct evidence is not available, we will assume that
counsel had a strategy if any reasonably sound strategic motivation can be imagined.
Lopez v. State, 343 S.W.2d at 143. In making an assessment of effective assistance of
counsel, an appellate court must review the totality of the representation and the
circumstances of each case without the benefit of hindsight. Id.
Espinoza specifically complains that his trial counsel was ineffective in failing to
object to expert and lay testimony that M.S. was truthful. An expert witness may testify
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if her scientific, technical, or other specialized knowledge will assist the jury in
determining a fact issue. TEX. R. EVID. 702. However, an expert witness' testimony
must aid the jury and not supplant its determination. TEX. R. EVID. 704; Schutz v. State,
957 S.W.2d 52, 59 (Tex. Crim. App. 1997). Expert witness testimony concerning child
sexual abuse does not aid the jury when it constitutes a direct opinion on the child
victim's truthfulness and in essence, decides an ultimate fact issue for the jury. Yount v.
State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993). Expert witness testimony should only
be admitted when it is helpful to the jury and limited to situations in which the expert's
knowledge and experience on a relevant issue are beyond that of an average juror.
Williams v. State, 895 S.W.2d 363, 366 (Tex. Crim. App. 1994). Expert witness testimony
that a child victim exhibits elements or characteristics that have been empirically shown
to be common among sexually abused children is relevant and admissible under Rule
702 because it is specialized knowledge that is helpful to the jury. Duckett v. State, 797
S.W.2d 906,920 (Tex. Crim. App. 1990); Gonzales v. State, 4 S.W.3d 406, 417 (Tex.App.-
Waco 1999, no pet.).
Jennifer Hight, an investigation supervisor for the Texas Department of Family
and Protective Services, testified that the Department received a referral of alleged
sexual abuse of M.S. by Espinoza. Hight testified about the process of receiving and
investigating referrals. She testified that the Department set up a forensic interview for
M.S. and made a police report. Hight further testified that the Department believed
M.S. was safe in her home and closed the case. Hight explained that the disposition of
the case was “reason to believe” meaning that the Department believed there was a
Espinoza v. State Page 4
“preponderance of evidence that there is a reason to believe that sexual abuse did occur
to [M.S.].” Espinoza argues that Hight’s testimony was a direct comment on M.S.’s
truthfulness. We find that Hight’s testimony explained the procedures of the
Department and the Department’s findings. The testimony was not a direct comment
on M.S.’s truthfulness. Espinoza’s trial counsel was not ineffective in failing to object to
her testimony.
Mary Floyd testified that she is a forensic interviewer and that she interviewed
M.S. at a children’s advocacy center. Floyd testified about “red flags” in determining if
children are being truthful and that she did not have any “red flags” in this case. Her
testimony was not a direct comment on M.S.’s truthfulness, and trial counsel was not
ineffective in failing to object to the testimony.
Dr. William Lee Carter testified that he is a psychologist with significant
experience in the area of dealing with victims of sexual abuse. Dr. Carter did not
interview or counsel M.S., but he observed her testimony at trial. Dr. Carter testified
about characteristics in determining the believability of a child. Dr. Carter’s testimony
was admissible to show that M.S. exhibits elements or characteristics that have been
empirically shown to be common among sexually abused children. His testimony was
not a direct comment on her truthfulness, and trial counsel was not ineffective in failing
to object to the testimony.
Investigator Ricky Roberts, with the TSTC Police Department, testified that he
received a report regarding sexual abuse of M.S. by Espinoza. Investigator Roberts did
not interview M.S., but watched the forensic interview conducted by Floyd. The State
Espinoza v. State Page 5
questioned Investigator Roberts on indicators that a child is telling the truth and
motives that the child has to tell a lie. The State asked Investigator Roberts whether he
had any concerns that M.S. had a motive to get Espinoza in trouble, and he responded,
“I did not have - - I felt she was truthful.” The State then again questioned Investigator
Roberts on M.S.’s motives to get Espinoza in trouble.
The State concedes that Investigator Roberts’s response was an opinion on M.S.’s
truthfulness. Appellant’s trial counsel did not object to the statement, but questioned
Investigator Roberts on cross-examination about his qualifications and experience in
dealing with child abuse cases. Trial counsel elicited on cross-examination that
Investigator Roberts has no training as a child psychologist, as a forensic interviewer, or
in determining the truthfulness of children’s statements. Espinoza has not shown that
trial counsel’s actions were not based upon sound trial strategy. See Lopez v. State, 343
S.W.3d 137 (Tex. Crim. App. 2011). Espinoza has not shown that he received ineffective
assistance of counsel. We overrule the sole issue on appeal.
Conclusion
We affirm the trial court’s judgment.
AL SCOGGINS
Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 6, 2014
Do not publish
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